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IN THE HIGH COURT OF ORISSA AT CUTTACK
VINEET SARAN, B.R. SARANGI, JJ.
Sukhalal Munda - Petitioner
Versus
State of Odisha and others - Opp. Parties
W.P.(C) NO. 4398 OF 2017
Decided on : 30-03-2017
2. ODISHA ZILLA PARISHAD ACT, 1991 - Sub-Sec. (1) of Sec. 51 - Framing of Rules - Odisha Zilla Parishad Act provides that the Government may frame Rules after previous publication inviting suggestions and objections - Different Rules, namely, the Orissa Zilla Parishad Election Rules, 1994, the Orissa Zilla Parishad (Conduct of Business) Rules, 1996, the Orissa Zilla Parishad (Division and Reservation of Constituencies) Rules, 1995 and the Orissa Zilla Parishad (Constitution of Standing Committees) Rules, 2000 have been framed inviting previous publication inviting suggestions and objections - Rule 51A inserted by amendment in Orissa Zilla Parishad Election Rules, 1994 without previous publication - The word ‘may’ appearing under Sub-Sec. (1) of Sec. 51 is to be read as ‘shall’ as the object of the Rule will be defeated by construing the same as directory - Previous publication for enacting the amendment in the Rules, is mandatory - Notification issued on 08.03.2017 without previous publication suffers from procedural ultra vires - Notification is quashed. (Paras - 9 to 24)
3. ODISHA ZILLA PARISHAD ACT, 1991- Sec. 51 and Odisha Zilla Parishad Election Rules, 1994 - Sub-rule (2) of Rule 3 - Government issued notification for constitution of Zilla Parishads, which was published in the Official Gazette on 23.12.2016 - By notification dated 27.12.2016, State Election Commission,appointed the date and time for conduct of election and the election process continued till 27.03.2017, when election result of Vice-President published - During the continuance of election process, the Government issued a notification on 08.03.2017, directing insertion of Rule 51A by the Odisha Zilla Parishad Election (Amendment) Rules, 2017- By reason of conduct, the provision for making previous publication, inviting as required under the Act having been given effect to and the provisions contained in the General Clauses Act, requires previous publication; the same has to be followed scrupulously - Non-observance of the provisions contained in Sec. 51(1) of the Odisha Zilla Parishad Act, 1991 read with Sec. 24 of Orissa General Clauses Act, 1937 - Amendment made to the Odisha Zilla Parishad Rules, 1994, by inserting Rule 51A in the impugned notification dated 08.03.2017 during the election process cannot sustain in the eye of law and is quashed. (Paras - 9)
4. ODISHA ZILLA PARISHAD ACT, 1991- Sec. 6-A - Superintendence, direction and control of elections shall be vested in State Election Commission - After the election process starts, the Government lacks authority to amend the Odisha Zilla Parishad Election Rules, 1994. (Paras - 9 & 29)
5. CONSTITUTION OF INDIA, 1950 (73rd amendment) - Object behind incorporation of Arts. 243 to 243-O & Eleventh Schedule under Part-IX, with effect from 24.04.1993 - The amendment is to strengthen the panchayat system at grass root level - A uniform three-tier system of Panchayat, i.e., at village, intermediate and district level, created throughout the country with a uniform constitutional base. (Paras - 1 and 2)
6. CONSTITUTION OF INDIA, 1950 - Art. 40 - Directive Principles - State to vest Powers and authority to enable Panchayats to function as units to self-Government - 73rd amendment of Constitution gave effect to the Directive Principles of State Policy. (Paras - 1 and 2)
7. ODISHA GENERAL CLAUSES ACT, 1897 - Sec. 24 (Pari materia with Sec. 23 of the General Clauses Act, 1897) - Meaning of ‘Previous Publication’- Explained. (Paras - 11 and 12)
8. DOCTRINE OF ULTRA VIRES - Ultra Vires meaning of - Explained - Vires of an Act may be looked into as (i) simple ultra and/or (ii) procedural ultra vires - Doctrine of Ultra Vires virtually cover all situations, where the statutory power is exercised, contravening the legal principles - Not only it applies when there is lack of power to do any act but also in situations like improper or unauthorized procedure, purpose or violation of the law of natural justice in spite of the power lawfully conferred on the authority. (Paras - 13 to 15)
9. INTERPRETATION OF STATUTE - Construction of words employed in the Act - Directory or Mandatory - The use of word ‘may’ in Sub-Sec. (1) of Sec. 51 of the Odisha Zilla Parishad Act, 1991 - ‘May’ is to be read as ‘shall’ as the very object of the said Rule will be defeated, by construing the same as directory. (Paras - 16 to 2
B.R. SARANGI, J.
Part-IX has been added to the Constitution consisting of Articles 243 to 243-O and a new Schedule, viz., Eleventh Schedule has also been added by the Constitution (Seventy-third Amendment) Act, 1992 with effect from 24.04.1993. The amendment is intended to give effect to Article 40 of the Directive Principles of State Policy. Article 40 directs the State to take steps to organize Village Panchayats and vest them with such powers and authority and may be necessary to enable them to function as units to self-Government. The object of Part IX was to introduce the panchayat system at grass root level. As panchayat systems were based on State Legislation, and their functioning was unsatisfactory, the amendment to the Constitution sought to strengthen the panchayat system by giving a uniform Constitutional base, so that the panchayats became vibrant unit of administration in rural area by establishing strong, effective and democratic local administration, so that there can be rapid implementation of rural development programmes. A uniform three-tier system of Panchayats, i.e., at village, intermediate and district level, has been created throughout the country.
Their term is fixed for five years and new elections are to be held before the period expires. There is reservation for scheduled castes/scheduled tribes and women for the post of members, as well as chairperson. It is also provided that all the reserved seats are to be allotted by rotation of different constituents in a Panchayat. The aim of rotation may be to draw into political process, members of vulnerable groups in all areas. The State Government is empowered to confer upon Panchayat institution the right to implement schemes relating to twenty-six subjects inserted in the Eleventh Schedule.
2. To achieve those avowed objectives, after completion of five years tenure, the Government of Odisha in Panchayati Raj Department vide notification issued under sub-rule (2) of Rule 3 of the Odisha Zilla Parishad Election Rules, 1994 published in Official Gazette on 23.12.2016, called upon all the Parishad Constituencies in the State to elect their Members for the purpose of constituting the Zilla Parishads. Consequentially, in exercise of power conferred under Article 243-K of the Constitution of India and sub-rule (1) of Rule 4 read with Rules 20, 36 and 47 of the aforesaid Rules, the State Election Commission, by the notification dated 27.12.2016, appointed the date and time with respect to conduct of election. From the date of notification, i.e. 27.12.2016, the election process was to continue till the date of publication of names of duly elected Vice-President by the Commission i.e., 27.03.2017. As such, the model code of conduct issued by the Commission would remain in force from the date of issuance of notification till the final publication of the results. During continuation of the election process, a notification was issued on 08.03.2017 by the State Government, in exercise of power conferred by Section-51 of the Odisha Zilla Parishad Act, 1991 (Odisha Act 17 of 1991) amending the Odisha Zilla Parishad Election Rules, 1994 by inserting Rule 51A after the Rule 51 of the existing Rules, which is the subject-matter of challenge in this application.
Rule 51A of Odisha Zilla Parishad Election (Amendment) Rules, 2017 is extracted hereunder:
“51A. (1) Every political party, whose member as an elector casts a vote for the purpose of election to the office of the President, or as the case may be, the Vice-President, may appoint one authorized agent and the President or the General Secretary of the State Level Political Party/State unit of the National Political Party shall, in writing, inform the same to the Election Officer with full details of the authorized agent proposed to be so engaged for the said election prior to the scheduled date of election.
(2) Notwithstanding anything contained in Rules 50 and 51, the Election Officer shall, between the period, when an el
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